From the Cradle of Liberty in Faneuil Hall in Boston, to the internet Superhighway, the definition of a public forum has been further developed by the New York Appellate Courts and Farber Schneider Ferrari LLP (“FSF”) was there to facilitate it.
I, Daniel J. Schneider, Managing Partner of FSF, successfully argued in Nelson v. Ardrey, __ A.D.3d __ (2d Dept. 2024), what we all knew, that Facebook and other social media is simply a virtual public square—a place for exchange of ideas—and cat videos. The Appellate Division, Second Department, in a published decision, held that it is joining California, Connecticut, Nevada and several other states in “Conclud[ing] that Facebook is a public forum within the meaning of Civil Rights Law § 76-a(1).” Id. at p. 5.
As a result, one must take care when “speaking” online, since the Court determined that it is no different than standing on a soap box in Times Square and orating to the masses. That being said, while Facebook as a whole is a public forum, the Court appeared to distinguish between posts to private profile pages and community pages for the of applicability of New York’s anti-SLAPP statute, Civil Rights Law § 76-a. Under this statutory scheme, the law protects speakers from litigation if their speech was made in a public forum and was a matter of public interest. If anti-SLAPP applies and the defendant wins, the law in New York requires the plaintiff to pay the defendant’s attorney’s fees.
The curious distinction made by the Ardrey Court is regarding whether speech is of public interest. The statutory scheme requires that public interest “be construed broadly and shall mean any subject other than a purely private matter.” Civil Rights Law § 76-a(a)(1)(d). Essentially, anything that is not 100% private should be of “public interest” as it relates to anti-SLAPP.
While public interest is supposed to be extremely broad—with breadth being expressly mentioned in the statutory language—the Second Department appears to have judicially counteracted that statutory language by expanding the definition of “purely private.” Ardrey, __ A.D.3d __ at p. 6. According to this Court’s opinion, it appears that “the sphere of public interest” is based upon where on Facebook you place your speech and not on the content of that speech. Id. The Court held, “The record shows that the defendants made [] statements [of criminal conduct on the part of Plaintiff] on what was a limited personal Facebook post concerning the birthday of the plaintiff’s daughter and not on a forum of broader scope. Under these circumstances, the content of the challenged statements was not within the sphere of public interest.” Id. Apparently, the same words on a personal wall, though open to the public for anyone to see, even if salacious, would be purely private, while their appearance on a community page would render it of public interest.
I disagree with this analysis and believe it does not track the intent of the statutory definition of “Public Interest,” which by its express language is enormously broad. Civil Rights Law § 76-a(a)(1)(d). I believe that if there are no security settings in place on one’s personal Facebook page, such that anyone can view and comment on it, as was the case here, it is as public as any community page on the platform. The Ardrey decision even acknowledges that “Facebook has provided each user with a virtual “wall” where each user can share on his or her wall, or any other public wall, his or her thoughts, pictures, opinions, and links to other websites and articles.” Ardrey, __ A.D.3d __ at p. 4. Thus, the decision expressly states that a personal profile can be a public space.
This case settled before the publication of this decision (interestingly, the Court was informed of this fact and elected to issue the decision anyway). Therefore, the case is closed with no controversy remaining. As a result, the U.S. Constitution may prevent review of this decision as it could constitute an impermissible advisory opinion. Thus, we may have to stay tuned for other cases to further develop this law, but in my opinion, the Court of Appeals is going to have to tackle this issue squarely. Regardless, this decision was a great day for Farber Schneider Ferrari LLP, who is available to advise you on anti-SLAPP, appellate practice, and many other complex matters and practice areas.
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